Before I come to the merits of the Bill, I would like to draw the House’s attention to the fact that, along with Her Majesty’s Government, I have been a defendant in civil actions brought by two Libyan nationals and their families—Mr al-Saadi, who has already been mentioned, and Mr Belhaj. A settlement was made public last week in respect of Mr al-Saadi’s case without any admission of liability by any of the defendants. In the case of Mr Belhaj, proceedings are still active. In these circumstances, the House will, I am sure, understand how constrained I must be in respect of these matters at the present time. I hope to be able to say much more about these cases at an appropriate stage in the future. I should, however, make it clear that at all times, in all the positions of Secretary of State that I occupied, I was scrupulous in seeking to carry out my duties in accordance with the law.
On a lighter note, I apologise Mr Deputy Speaker, to you and to the House that I may have to leave if the winding-up speeches go past 6.15 pm, as I have to conduct an open air carol service beyond the House at 7 pm.
Let me move on to discuss the Bill. As Home Secretary and Foreign Secretary, I was responsible over a period of nine years for all three of the agencies—a distinction, I gather, I share only with the noble Lord Hurd in the other place. During those nine years, I came to have a very high regard indeed for the agencies, for their leadership and for all the staff who work for them. I also recognised that it is through improved methods and means of accountability that the quality and standing of those agencies can be improved and not undermined. I therefore greatly welcome the proposals in part 1 to strengthen the role and status of the Intelligence and Security Committee, and, indeed, to add to the powers of the Intelligence Services Commissioner.
The more controversial aspects of the Bill—on closed material proceedings—are contained in part 2. The starting-point for everyone in this House has to be that, in principle, justice must be open and has to be seen to be done. This House and our courts have rightly established a high bar for any modification of that principle. Sometimes, however, they have so modified that principle where it collides with other equally important principles. One of those concerns the safety of witnesses in criminal trials. Thus, in the Criminal Evidence (Witness Anonymity) Act 2008, following the Law Lords’ decision in the Davis case, I introduced—and both Houses quickly
passed—a statutory scheme providing for witnesses who would otherwise be in grave danger, to give their evidence under the protection of anonymity. That evidence is still heard by the defendant and his counsel, as well as by the jury: it is the identity of the witness, not the evidence itself, that is kept confidential.
There is, then, the situation that this Bill seeks to address, where the clash with the principle of open justice is the greater. That is where in civil actions, not just the identity of the witness, but the evidence they give, is kept confidential from one of the parties and their counsel—typically in circumstances where the action is against the state.
My hon. Friend the Member for Aberavon (Dr Francis), who I regret is not in his place at the moment, talked about part 2 being a “radical departure” from accepted principles of the common law. The irony is that the first “radical departure” to establish closed material proceedings came as a result of the decision of the European Court of Human Rights in the Chahal case. As the Minister without Portfolio pointed out, closed material proceedings were established in response to those human rights concerns and at the behest of the same human rights lawyers who are now claiming that closed material proceedings represent some fundamental breach of human rights. If I may say so, they do not, and the Special Immigration Appeals Commission process has been found to be completely consistent with the European convention.
As we know, SIAC’s task is to determine whether a deportation order made against an individual on grounds of national security should be executed. The special advocates see all the evidence, and their duty—formally to the court and not to the client—is to have all the secret evidence tested as forensically as possible before the tribunal, but the deportee cannot know what the evidence is. As a result, there is an especial burden on the tribunal to test this evidence.
Those who are sceptical about SIAC, or any closed material proceedings, need to address themselves to SIAC’s record. I mentioned in an intervention on the Minister without Portfolio that of 37 substantive cases before SIAC since January 2007, in at least seven, SIAC has found against the Government—and the cases do not go there in the first place unless the evidence is quite strong.
SIAC could not operate without closed material proceedings at its heart. The question before the House today is whether such proceedings should be extended to civil actions. In the case of al-Rawi, the Supreme Court decided that if CMP were to be extended to civil actions, that must be a matter for Parliament rather than the courts. Its decision followed the approach of the Law Lords in R v. Davis.
I make no complaint about that. For all the talk about alleged excessive judicial activism, in both cases the Supreme Court and the Law Lords were simply saying “We cannot make the law here in order to extend the law; this is a matter for Parliament.” That seems to me entirely appropriate, and I take issue with the suggestion of my hon. Friend the Member for Aberavon that it was as big a “radical departure” as he and his Committee had claimed. The truth is that there was no necessity for any radical departure in respect of the accountability of the intelligence agencies until 15 years ago, because before then the agencies were not accountable at all. There was no way in the world in which any of these
actions would have been entertained. Had they been tried, they would have been struck out by the judge because there was no evidence.
The hon. Member for Oxford West and Abingdon (Nicola Blackwood) is looking at me sceptically, but before 1989, the existence of the agencies was not even admitted publicly. The present situation is relatively new. It arises precisely because of the work done by successive Governments in the last 20 years to make the agencies accountable, and not for any other reason.